Hutchinson v. Proxmire (1979)

Professor Ronald Hutchinson sued Senator William Proxmire for defamation after the Senator gave a “Golden Fleece“ award to the agencies that funded the professor's research.The trial and appeals courts ruled that the Speech or Debate Clause of the Constitution (Article I, Section 6), as well as the First Amendment, protected Senator Proxmire from liability for comments in the Senate and in press releases and newsletters. Hutchinson then appealed to the Supreme Court.

The Supreme Court ruled that the Speech or Debate Clause does not protect Members of Congress against liability for information they transmit by press releases or newsletters. Chief Justice Warren Burger delivered the opinion of the Court. Six other justices joined in substantially all of the opinion; Justice William Brennan dissented.

Read literally, the Speech or Debate Clause protects Members only for a “Speech or Debate in either House.“ Neither the language of the Clause nor the history of its application supports immunity for more than core legislative activities. The Chief Justice observed that newsletters and press releases may be useful for communicating with constituents and with other Members of Congress, but they are not part of the legislative process and are not entitled to the protection of the Speech or Debate Clause.

Dissenting, Justice Brennan wrote: “I disagree with the Court's conclusion that Senator Proxmire's newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States….“

The constitutional Speech or Debate Clause descends from a similar provision in the English Bill of Rights. King Charles II of England had been rumored to be plotting with the King of France to make Catholicism the religion of England. The Speaker of the House of Commons, Sir William Williams, accused Charles II in the Commons, a house of Parliament. In 1686, after James II became king, Sir William was charged with libel and was fined. James II went into exile soon after, and a provision was included in the English Bill of Rights guaranteeing freedom of speech and debate in the legislature “for the sake of one…Sir William Williams, who was punished out of Parliament for what he had done in Parliament.“

Justice Brennan recounts this history of the English Speech or Debate Clause in his dissent in Gravel v. United States, 1972, a case he referred to in his dissent in Hutchinson. Gravel and Hutchinson are the leading Supreme Court cases on the Speech or Debate Clause. Gravel concerned Senator Mike Gravel's release to the public of a classified Defense Department study on Vietnam War policy. The press reported that the Senator had also arranged for private publication of the documents. A federal grand jury attempted to question an aide to the Senator. The Supreme Court held that the aide was entitled to the same protection as a Senator, but that there was no protection from being called to testify about the private publication.